Articles

66(4): 901 - 918 (August 2011)Over the last several years, the rise of electronic discovery, the increasing focus of in-house counsel on business roles, and increasing complexity of mergers and acquisitions have expanded significantly the volume and type of potentially privileged documents created in connection with mergers and acquisitions. Despite the commonly-held perceptions of clients and deal-lawyers alike, many communications sent to or from lawyers are not privileged. In addition, courts-and in particular, the Delaware Court of Chancery-are taking a closer look at the privilege determinations being made by litigants before them. These shifts have important practical impacts on lawyers and clients. This article examines these circumstances and recent decisions in the courts to provide practical advice for deal lawyers.

66(4): 919 - 942 (August 2011)Regulation D is-or at least should be-the crown jewel of the Securities and Exchange Commission's regulatory exemptions from the registration requirements of the Securities Act of 1933. It offers businesses-especially businesses with relatively small capital requirements-fair and efficient access to vital, external capital. In this article, I present data derived from deep samples of recent Form Ds filed with the Commission. The data show that Regulation D is not working in the way the Commission intended or in a way that benefits society. The data reveal that companies attempting to raise relatively small amounts of capital under Regulation D overwhelmingly forego the low transaction costs of offerings under Rules 504 and Rule 505 in favor of meeting the more onerous (and more expensive) requirements of Rule 506. Additionally, these companies overwhelmingly limit their relatively small offerings to accredited investors, which dramatically reduces the pool of potential investors. Reclaiming Regulation D requires the elimination of state authority over all Regulation D offerings.

66(4): 943 - 962 (August 2011)In May 2008, the authors published an article discussing the general principles behind Delaware cases involving disclosure regarding fairness opinions in the financial advisors that provide that. This article updates that prior article discusses the evolution of Delaware law on this topic.

66(4): 963 - 972 (August 2011)The proposed new section 7.29A provides subject matter jurisdiction to the specified court to resolve certain corporate governance disputes and establishes an expedited procedure for doing so. The purpose of such a proceeding is to prevent a corporation from being immobilized by controversies with respect to the identity of its directors or officers, the members of any committee of its board of directors, or the results or validity of shareholder votes. This section does not displace or alter any preexisting remedies and is not intended to be the exclusive remedy for disputes of the type covered by this section.

66(4): 975 - 1064 (August 2011)The primary purpose of the Guidebook is to provide
concise guidance to corporate directors in meeting their responsibilities. The
Guidebook focuses on the role of the individual director, in the context of providing
advice about the duties and operation of the board and its key committees. Although many director decisions and tasks occur against a legal backdrop, the authors emphasize the law only in limited instances and otherwise attempt to avoid legalisms.